WHEELER v. VAUGHN

The opinion of the court was delivered by: JOHN PADOVA, District Judge

MEMORANDUM

Before the Court is Aaron Christopher Wheeler's pro se Petition for
Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. For the reasons
that follow, the Court denies the Petition in its entirety.

I. FACTUAL AND PROCEDURAL BACKGROUND

On October 16, 1991, at approximately 7:50 PM, Petitioner and
co-defendant Jesse Bond entered a take out restaurant at 6825 Ogontz
Avenue, in Philadelphia, Pennsylvania. Bond ordered a soda from the
restaurant owner, Jennifer Lee, who was standing behind the counter. As
Ms. Lee turned around to prepare the soda, Bond stepped behind the
counter, pointed a gun at her, and announced his intention to rob the
store. Bond then shot Ms. Lee four times before he and Petitioner exited
the restaurant.

On June 10, 1993, after a bench trial, the Honorable Arthur S.
Kafrissen of the Philadelphia Court of Common Pleas convicted Petitioner
on four counts of aggravated assault, robbery, criminal conspiracy and
possession of an instrument of crime. Post-verdict motions were denied
and, on June 6, 1994, Judge Kafrissen sentenced Petitioner to an
aggregate term of 330 to 660 months of
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imprisonment.*fn1 Trial counsel filed a notice of appeal on Petitioner's
behalf with the Pennsylvania Superior Court, raising two issues: (1)
whether the suppression court committed reversible error in failing to
suppress Petitioner's statement to the police, and (2) whether the trial
court committed reversible error in returning guilty verdicts on all four
charges when the evidence showed only that Petitioner was merely present
at the scene of the crime. The judgment was affirmed by the Pennsylvania
Superior Court on February 22, 1996. Commonwealth v. Wheeler, 677 A.2d 1268
(Pa. Super. 1996). On April 22, 1997, the Pennsylvania Supreme Court
denied allocatur. Commonwealth v. Wheeler, No. 194 E.D. Alloc. Docket
1996.

On October 17, 1997, Petitioner filed a pro se petition pursuant to the
Pennsylvania Post-Conviction Relief Act ("PCRA"), setting forth numerous
claims for relief.*fn2 The PCRA court
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appointed counsel for Petitioner, but his counsel sought to withdraw by
the filing of a "no merit" letter with the PCRA court. The PCRA court
granted counsel's request to withdraw and dismissed the PCRA petition on
February 9, 1999. Petitioner appealed the order dismissing his PCRA
petition to the Superior Court, which affirmed the dismissal on January
31, 2000. Commonwealth v. Wheeler, 754 A.2d 24 ( Pa. Super. 2000). The
Pennsylvania Supreme Court denied review on June 6, 2000. Commonwealth
v. Wheeler, 759 A.2d 385 (Pa. 2000).

On January 26, 2001, Petitioner filed a pro se Petition for Writ of
Habeas pursuant to 28 U.S.C. § 2254. The Petition asserts the
following issues:

(A) The suppression court violated Petitioner's equal
protection and due process rights under the Fourteenth
Amendment by ruling on pretrial motions after the
judge admitted that he was biased against Petitioner;

(B) The pretrial motions ruled on by the suppression
court judge must be re-litigated before an impartial
judge;

(C) A new trial should be granted because state and
federal law prohibits the substitution of judges after
evidence probative of guilt or innocence has been
heard
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by the court;

(D) Trial counsel was ineffective based on (I)
counsel's abandonment of Petitioner during the
pretrial stage, leaving Petitioner alone to argue his
motion to dismiss the case, (2) counsel's advising
Petitioner to waive his preliminary hearing and
arraignment without first explaining the consequences
of such waiver, (3) counsel's failure to communicate
with Petitioner regarding preparation of his defense
and failure to file a motion to dismiss, (4) counsel's
failure to challenge an improper "deal" allegedly
entered into by both the prosecution, and Judge Pamela
Cohen, with witness Anthony Sheppard, and (5)
counsel's failure to provide Petitioner with copies of
discovery submissions so that he could assist in the
preparation of his defense;

(E) The suppression court's denial of his motion
to dismiss violated his constitutional right to a
speedy trial;

(F) The trial verdict was contrary to the law;

(G) The trial verdict was against the weight of
the evidence;

(H) The trial court erred in sentencing Petitioner
to consecutive terms of imprisonment when all the
charges arose out of the same incident and should
have merged for sentencing purposes;

(I) The trial court erred by failing to suppress the
testimony of witness Anthony Sheppard under applicable
state and federal professional responsibility rules;

(J) The prosecutor's conduct violated applicable
state and federal professional responsibility
rules;

(K) Because the prosecutor's conduct violated
applicable state and federal professional
responsibility rules, the testimony of witness Anthony
Sheppard should be suppressed;

(L) The record contains sufficient evidence of
prosecutorial misconduct to remand for a new trial;

(M) The PCRA court committed reversible error by
accepting PCRA counsel's submission of a "no merit"
Page 5
letter because (1) counsel filed said letter without
first investigating the facts of the case and
researching the applicable law, as the letter did not
detail the nature and extent of any investigation or
research, (2) counsel's letter did not explain why
Petitioner's case was meritless, (3) the court failed
to independently review the record and Petitioner's
claims, (4) the court did not inform Petitioner of any
defects in his PCRA petition or give him an
opportunity to cure any defects;

(N) The PCRA court committed reversible error by
accepting counsel's "no merit" letter because (1)
counsel never communicated with Petitioner during
the entire year in which his petition was pending,
(2) counsel did not forward a copy of the letter
to Petitioner, (3) counsel falsely stated that she
reviewed Petitioner's submissions, when he never
submitted anything to her because he was not even
aware that counsel had been appointed;

(O) The suppression court committed reversible error
in failing to suppress a statement by Petitioner that
was taken in violation of the "six-hour" rule under
Pennsylvania law; and

(P) The trial court committed reversible error in
returning verdicts of guilty on all four charges
because the prosecution's evidence only showed
that Petitioner was merely present at the scene of
the crime.

The Court referred this case to Magistrate Judge Carol Sandra Moore
Wells for a Report and Recommendation pursuant to 28 U.S.C. § 636. On
May 30, 2003, the Magistrate Judge filed a Report and Recommendation
("Report") recommending that the Petition for Writ of Habeas Corpus be
denied in all respects, without an evidentiary hearing. Petitioner timely
filed objections to the Magistrate Judge's Report. In addition to
challenging the Report in its entirety, Petitioner objects to the
Magistrate Judge's failure to rule on two of his motions prior to the
issuance of the Report.
Page 6

II. LEGAL STANDARD

Where a habeas petition has been referred to a magistrate judge for a
Report and Recommendation, the district court "shall make a de novo
determination of those portions of the report or specified proposed
findings or recommendations to which objection is made . . . [The Court]
may accept, reject, or modify, in whole or in part, the findings or
recommendations made by the magistrate." 28 U.S.C. § 636(b).

III. DISCUSSION

A. Magistrate Judge's Failure to Rule on Petitioner's Motions

1. Petitioner's outstanding discovery motion

On December 24, 2001, Petitioner filed an application for leave to
conduct discovery in connection with the instant Petition. (Doc. No. 7.)
On January 4, 2002, the Magistrate Judge denied the motion without
prejudice, in anticipation that any relevant documents would be attached
to Respondents' forthcoming Answer to the Petition. (Doc. No. 10.)
Respondents filed the Response to the Petition on January 31, 2002. (Doc.
No. 13.) Attached as exhibits to the Response were copies of the Superior
Court decision affirming Petitioner's convictions on direct appeal, the
order of the Pennsylvania Supreme Court denying allowance of direct
appeal, the "no merit" letter filed by his court-appointed PCRA counsel,
the PCRA court opinion dismissing Petitioner's petition, the Superior
Court decision affirming the PCRA court, the order of
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Pennsylvania Supreme Court denying allowance of PCRA appeal, Petitioner's
PCRA petition, and Petitioner's PCRA appellate brief.

On February 6, 2002, Petitioner filed a renewed application for leave
to conduct discovery. (Doc. No. 14.) In the application, Petitioner
listed a number of document requests, which included copies of
transcripts from prior proceedings, witness lists from his trial,
documentation of the alleged "deal" between the prosecution and witness
Anthony Sheppard and of the sentence imposed on Sheppard for
cooperating, any drawings of the alleged perpetrators of the crimes for
which he was convicted, any notes or interviews of Petitioner's counsel
concerning representation of Petitioner, police reports of Petitioner,
all orders and other decisions rendered by the state courts, the
appellate brief filed by counsel on Petitioner's behalf, and any other
exculpatory evidence. Petitioner alleges that the Magistrate Judge never
ruled on this motion. Without access to the above documents, Petitioner
contends that he could not fully pursue the instant Petition. The docket
confirms that the Magistrate Judge never ruled on Petitioner's motion for
leave to conduct discovery. Accordingly, the Court has considered the
merits of Petitioner's discovery motion in the first instance.

"A habeas petitioner, unlike the usual civil litigant in federal court,
is not entitled to discovery as a matter of ordinary course." Bracy
v. Gramley, 520 U.S. 899, 905 (1997). Instead,
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Habeas Corpus Rule 6(a) ("Rule 6(a)") provides that "[a] party shall be
entitled to invoke the processes of discovery available under the Federal
Rules of Civil Procedure if, and to the extent that, the judge in the
exercise of his discretion and for good cause shown grants leave to do
so, but not otherwise." Rule 6(a) 28 U.S.C. foll. § 2254. A
petitioner establishes "good cause" for discovery under Rule 6(a) "where
specific allegations before the court show reason to believe that the
petitioner may, if the facts are fully developed, be able to demonstrate
that he is. entitled to relief." Bracy, 520 U.S. at 908-09 (quoting
Harris v. Nelson, 394 U.S. 286, 300 (1969)); see also Marshall v.
Hendricks, 103 F. Supp.2d 749, 760 (D.N.J. 2000) (noting that good cause
is established "[i]f a petitioner can point to specific evidence that
might be discovered that would support a constitutional claim").

In his application for discovery, Petitioner contends that the
Respondents' opposition brief misstated portions of the trial court
record. Specifically, Petitioner alleges that, contrary to the
Respondents' assertions, the trial record does not establish that three
independent witnesses testified that co-defendant Jesse Bond was
accompanied and assisted by a second man and that Petitioner suggested
robbing the convenience store. Petitioner requests copies of the trial
transcripts for the purpose of showing the Court "that the Respondents
have misstated the record to the Court in their response in numerous
places." (Pet. Disc. Mot. ¶ 7.)
Page 9

Petitioner's discovery request is clearly prompted by his concern that
this Court will rely solely on the Respondents' characterization of the
trial court record in ruling on the claims in the instant Petition.
Petitioner's fears are unfounded, however, as the entire trial court
record has been submitted to, and carefully reviewed by, this Court. Any
evidence in the trial record that supports his constitutional claims has,
as a practical matter, already been discovered. As Petitioner's request
for production of the trial record is without merit, his objection is
overruled in this respect.

Petitioner also requests production of numerous other documents and
materials, baldly alleging that "without these documents he will be
denied of his right to file one all-inclusive habeas petition." (Pet.
Disc. Mot. ¶ 6.) Without specific allegations in support of these
discovery requests, it is impossible for the Court to determine whether
Petitioner may, if discovery were permitted, be able to demonstrate that
he is entitled to habeas relief. As a "fishing expedition" for evidence
to support claims does not constitute good cause for habeas discovery,
Deputy v. Taylor, 19 F.3d 1485, 1493 (3d Cir. 1994), his objection is
overruled in this respect.*fn3
Page 10

2. Petitioner's newly discovered evidence motion

On May 22, 2002, Petitioner filed with the Magistrate Judge a motion to
supplement his habeas petition with newly discovered evidence. (Doc. No.
18.) The newly discovered evidence pertains to a "no merit" letter that
was filed by Patricia Dugan, who had
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been appointed by the state court to represent Petitioner on his
collateral appeal under the PCRA.*fn4 In the motion, Petitioner contends
that Dugan has admitted that, contrary to statements made in her "no
merit" letter, she did not communicate with Petitioner about the issues
raised in his PCRA appeal or otherwise receive information from him about
his case before filing the "no merit" letter with the PCRA court.
Petitioner maintains that the PCRA court's decision to dismiss his
petition, which he assumes was based exclusively on Dugan's "no merit"
letter, has been called into question by this newly discovered evidence.
The docket confirms that the Magistrate Judge did not rule on
Petitioner's newly discovered evidence motion prior to the filing of the
Report and Recommendation. Accordingly, the Court has considered the
merits of Petitioner's newly discovered evidence motion in the first
instance.

As an initial matter, the Court observes that the "newly discovered
evidence" cited by Petitioner far from establishes that Dugan made the
admissions attributed to her by Petitioner. To support his contentions
that Dugan filed a misleading "no merit" letter, Petitioner cites
language from an appellate brief filed by Dugan in a malpractice suit
that he brought against her.
Page 12

Specifically, the brief states that "Attorney Dugan asserted that she
had reviewed Plaintiff's claims as well as the Post-Conviction Relief Act
and concluded that Mr. Wheeler had no cognizable claim for relief." (Ex.
to Newly Disc. Evid. Mot.) It appears that Petitioner dubiously assumes
that Attorney's Dugan failure to specifically note in her brief that she
communicated with him before filing the "no merit" letter constitutes an
admission that she, in fact, did not. Moreover, Petitioner's presumption
that the PCRA court solely relied on Dugan's "no merit" letter in
dismissing his PCRA petition is even more doubtful, as Pennsylvania law
requires PCRA courts to independently review the record before granting a
withdrawal request by PCRA counsel and dismissing the petition. See
Finley, 550 A.2d at 215 (setting forth requirements for withdrawal and
dismissal). Indeed, the order by Judge Joseph of the Philadelphia Court
of Common Pleas denying Petitioner's appeal of its dismissal of his PCRA
petition states that "[t]his Court carefully reviewed the record and the
letter prepared by counsel. . . ." (Resp. Ex. C) (emphasis added).
However, even if the PCRA court had erred by relying solely on the "no
merit" letter, errors in PCRA proceedings are not cognizable on habeas
review. See Hassine v. Zimmerman, 160 F.3d 941, 954 (3d Cir. 1998)
("[T]he federal role in reviewing an application for habeas corpus is
limited to evaluating what occurred in the state or federal proceedings
that actually led to the petitioner's
Page 13
conviction; what occurred in the petitioner's collateral proceeding
does not enter into a habeas calculation."). As the introduction of the
newly discovered evidence cannot have any bearing on this Court's
resolution of the instant habeas petition, Petitioner's objection is
overruled.

B. Procedural Default

1. Exhausted claims

In his habeas petition, Petitioner raises a number of claims that the
state courts declined to review on the merits because of procedural
infirmities. It is well-established that federal courts are precluded
from reviewing a state petitioner's habeas claims if the state court
decision is based on a violation of state law that is independent of the
federal question and adequate to support the judgment. Coleman v.
Thompson, 501 U.S. 722, 729-30 (1991). It is equally well-settled that a
state prisoner's federal habeas petition should be dismissed if the
prisoner has failed to exhaust any available state remedies. Id. at 731.
Exhaustion principles are implicated when the independent and adequate
state ground is a state procedural default, as "a habeas petitioner who
has failed to meet the State's procedural requirements for presenting his
federal claims has deprived the state courts of an opportunity to address
those claims in the first instance." Id. at 732. A habeas petitioner who
has procedurally defaulted his federal claims in state court technically
satisfies the exhaustion requirements since
Page 14
there are no longer any state remedies available to him. Id. However, the
independent and adequate state ground doctrine prevents habeas
petitioners from relying on this technical exhaustion to overcome the
state procedural default, thereby ensuring that "the State's interest in
correcting their own mistakes is respected in all federal habeas cases."
Id. The Court of Appeals for the Third Circuit ("Third Circuit") has
stated that the independent and adequate state ground doctrine applies
only if "(1) the state procedural rule speaks in unmistakable terms; (2)
all state appellate courts refused to review the petitioner's claims on
the merits; and (3) the state courts' refusal in this instance is
consistent with other decisions." Doctor v. Walters, 96 F.3d 675, 683-84
(3d Cir. 1996). Under the third prong, the state procedural rule must
have been "firmly established and regularly followed" as of the date on
which the procedural default occurred. Id. (quoting Ford v. Georgia,
498 U.S. 411, 423-24 (1991)).

In this case, the state court relied on Pennsylvania's waiver rule in
rejecting claims H, I, J, K, L, M, and N of the Petition. Section 9544(b)
of the PCRA provides in unmistakable terms that PCRA courts are barred
from reviewing issues that "the petitioner could have raised . . . but
failed to do so before trial, at trial, during unitary review, on appeal
or in a prior postconviction proceeding." 42 Pa. C.S.A. § 9544(b).
Petitioner first presented
Page 15
claims H, I, J, K, L, M, and N in his PCRA appellate brief to the
Superior Court. The court deemed these claims waived and, consequently,
unreviewable. See Commonwealth v. Wheeler, No. 621 EDA 1999, at 3 n.2
("In his pro se brief to this Court, [Petitioner] lists several other
issues which were not included in his [PCRA] petition [such as] merger of
sentences, misconduct by the prosecution, and various other errors by the
PCRA court and counsel. We do not consider these issues."). Petitioner
does not dispute that the state appellate courts refused to review claims
H, I, J, K, L, M, and N on the merits. Furthermore, the waiver rule set
forth in these provisions had been regularly applied by Pennsylvania
courts at the time of the filing of Petitioner's PCRA appeal. See, e.g.,
Commonwealth v. Appel, 689 A.2d 891, 898 (Pa. 1997) (noting that waiver
is applied where petitioner could have raised issue before trial, at
trial, on appeal or in a prior post-conviction proceeding); Commonwealth
v. Stark, 698 A.2d 1327, 1329 (Pa. Super. 1997)(same). Accordingly,
federal review of claims H, I, J, K, L, M and N is barred by this state
procedural default. The state court relied on the PCRA's previous
litigation rule in rejecting Petitioner's sufficiency of evidence
arguments contained in claims F and P. Section 9544(a) of the PCRA states
in unmistakable terms that an issue is considered previously litigated if
"the highest appellate court in which the petitioner could have had
review as a matter of right has ruled on the merits of the
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issue." 42 Pa. C.S.A. § 9544(a). In refusing to consider claims F and
P on PCRA review, the Superior Court correctly observed that these claims
were "addressed in the direct appeal and is therefore previously
litigated." Commonwealth v. Wheeler, No. 621 EDA 1999, at 3 n.2.*fn5
Petitioner does not dispute that the state appellate courts refused to
review claims F and P on the merits. Furthermore, the previous litigation
rule set forth in these provisions had been regularly applied by
Pennsylvania courts at the time of the filing of Petitioner's PCRA
appeal. Commonwealth v.
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Lark, 698 A.2d 43, 47 (Pa. 1997) (declining to address previously
litigated issue on merits); Commonwealth v. Morris, 684 A.2d 1037, 1044
(Pa. 1996) (same); see also Laird v. Horn, 159 F. Supp.2d 58, 76 (E.D.
Pa. 2001) (noting that previous litigation rule may serve as independent
and adequate state ground barring federal habeas review). Accordingly,
federal review of claims F and P is barred by this state procedural
default.

The state court also relied on the PCRA's procedural provisions in
rejecting claims D(1) and D(3) of the Petition. Section 9543 of the PCRA
states in unmistakable terms that to be eligible for PCRA relief, a
petitioner "must plead and prove by a preponderance of the evidence" four
independent elements. 42 Pa. C.S.A. § 9543. Under the second
element, which is articulated in subsection (a)(2), a petitioner must
sufficiently demonstrate that his conviction resulted from one or more of
the circumstances exhaustively listed thereunder. In refusing to consider
claims D(1) and D(3) on PCRA review, the Pennsylvania Superior Court
observed that "[a] claim of ineffectiveness for failing to raise a speedy
trial issue used to be cognizable under former PCRA under §
9543(a)(2)(v). This particular subsection, i.e., (a)(2)(v), has been
deleted from the new act."*fn6 Commonwealth v. Wheeler, No. 621
Page 18
EDA 1999, at 4 (internal citation omitted). Petitioner does not dispute
that the state appellate courts refused to review claims D(1) and D(3) on
the merits. Furthermore, during the entire pendency of Petitioner's PCRA
appeal,*fn7 it was well-settled under Pennsylvania law that an
ineffectiveness claim based on counsel's failure to pursue a speedy trial
motion was not cognizable under any of the other (a)(2) subsections of
§ 9543. See, e.g., Commonwealth v. Lawson, 549 A.2d 107, 112 (Pa.
1988); Commonwealth v. Dukeman, 565 A.2d 1204, 1206 (Pa. Super. 1989).*fn8
Page 19

Accordingly, federal review of claims D(1) and D(3), inasmuch as claim
D(3) relates to trial counsel's failure to raise a speedy trial claim, is
barred by this state procedural default.

The state court also relied the PCRA's procedural provisions in
rejecting claim (D)(2) of the Petition. Specifically, the Superior Court
held that Petitioner's ineffectiveness claim based on counsel's waiver of
the arraignment and preliminary hearing was not cognizable on PCRA review
because "[t]he purpose of the PCRA is to provide relief for persons
convicted of crimes they did not commit and persons serving illegal
sentences. The only non-sentencing issues that are cognizable under the
PCRA are those alleging a violation that resulted in an unreliable
verdict." Commonwealth v. Wheeler, No. 621 EDA 1999, at 3 (internal
citations omitted). Petitioner does not dispute that the state appellate
courts refused to address claim D(2) on the merits. Furthermore, during
the entire pendency of Petitioner's PCRA appeal, it was well-settled
under Pennsylvania law that ineffectiveness claims based on counsel's
pretrial conduct was not cognizable on PCRA
Page 20
review.*fn9 See, e.g., Commonwealth v. Neal, 713 A.2d 657, 661 (Pa.
Super. 1998) (holding that ineffectiveness claims based on pretrial
matters are not cognizable under PCRA); Commonwealth v. Lassen,
659 A.2d 999, 1007 (Pa. Super. 1995) (holding that claims relating to
counsel's stewardship in pretrial matters are not cognizable under PCRA
and citing extensive case law). Accordingly, federal review of claim D(2)
is barred by this state procedural default.

2. Unexhausted claim

In order to exhaust the available state court remedies with respect to
a claim, a petitioner must fairly present all the claims that he will
make in his habeas corpus petition in front of the highest available
state court, including courts sitting in discretionary appeal. 0'Sullivan
v. Boerckel, 526 U.S. 838, 847-48 (1999). To "fairly present" a claim, a
petitioner must present a federal claim's factual and legal substance to
the state courts in a manner that puts them on notice that a federal
claim is being asserted. McCandless v. Vaughn, 172 F.3d 255, 261 (3d
Cir. 1999). Thus, "[b]oth the legal theory and the facts underpinning the
federal claim must have been presented to the state courts, and the same
method of legal analysis must be available to the state court
Page 21
as will be employed in the federal court." Evans v. Court of Common
Pleas, Delaware County, Pennsylvania, 959 F.2d 1227, 1231 (3d Cir.
1992). The burden of establishing that a habeas claim was fairly
presented in state court falls upon the petitioner. Lines v. Larkins,
208 F.3d 153, 159 (3d Cir. 2000). " [I] f [a] petitioner failed to
exhaust state remedies and the court to which petitioner would be
required to present his claims in order to meet the exhaustion
requirement would now find the claims procedurally barred . . . there is
procedural default for the purpose of federal habeas. . . ." Coleman v.
Thompson, 501 U.S. 722, 735 n.l (1991). Procedural default bars federal
review of those claims precluded by state law. Coleman, 501 U.S. at 729.

On his counseled direct appeal in state court, Petitioner asserted that
the "[t]he suppression court committed reversible error in failing to
suppress [Petitioner's] statement which was taken in violation of the six
hour rule."*fn10 (Notice of Appeal, 6/30/95.) Although Claim 0 in the
Petition states the issue in
Page 22
identical terms, the brief accompanying his Petition further argues that
the suppression court's decision violated his "constitutional right
against self-incrimination, due process, and the equal protection of the
law." (Pet. Brief, Claim O.) There is no indication in the state records
that the claim presented by Petitioner on his direct appeal in state
court included this additional federal constitutional component. As the
state courts were never "fairly presented" with the federal
constitutional component of Claim 0, this claim is unexhausted.*fn11
Petitioner cannot return to the state courts to file a successive PCRA
petition on his unexhausted claim, however, because the one-year statute
of limitations for such petitions has expired. See 42 Pa. Cons. Stat.
§ 9545(b)(I).*fn12 As Petitioner's judgment became final
Page 23
in 1997, any attempt to file for relief in the state courts would
be well beyond the one-year statute of limitations. Moreover, Petitioner
has not alleged, not would the state court likely find, that any of the
three exceptions to the PCRA statute of limitations apply in this
instance. Accordingly, federal review of claim 0 is barred by this
procedural default.

3. Exceptions to procedural default

Where a state prisoner has procedurally defaulted his federal claims in
state court, federal habeas review of the claims is barred "unless the
prisoner can demonstrate cause for the default and actual prejudice as a
result of the violation of federal law, or demonstrate that failure to
consider the claims will result in a fundamental miscarriage of justice."
Coleman, 501 U.S. at 750. The Magistrate Judge concluded that Petitioner
failed to demonstrate cause and actual prejudice or a fundamental
miscarriage of justice because of actual innocence. Although Petitioner
does not dispute the Magistrate Judge's findings on the issue of cause
and actual prejudice, he argues that the Magistrate Judge failed to
Page 24
properly consider his claim of actual innocence.

To invoke the fundamental miscarriage of justice exception, petitioner
must show that "a constitutional violation has probably resulted in the
conviction of one who is actually innocent." Murray v. Carrier,
477 U.S. 478, 496 (1986). To establish the requisite probability, the
petitioner must show that, in light of new evidence, it is more likely
than not that no reasonable juror would have convicted him. Schlup v.
Delo, 513 U.S. 298, 329 (1995). Petitioner must "support his allegation
of constitutional error with new reliable evidence  whether it be
exculpatory scientific evidence, trustworthy eyewitness accounts or
critical physical evidence  that was not presented at trial." Id.
at 324. Petitioner does not offer any new evidence, much less reliable
new evidence, in support of his actual innocence claim. Instead, he
contends that receipt of the documents requested in his February 4, 2002
discovery motion, which had not been decided as of his filing of
Objections to the Magistrate Judge's Report and Recommendation, would
enable him to satisfy his burden of showing actual innocence. As this
Court has ruled in the instant memorandum that Petitioner is not entitled
to production of the documents and materials requested in his February
4, 2002 discovery application, it follows that Petitioner's unsupported
claim of actual innocence must be rejected. Petitioner has, therefore,
failed to establish cause and actual prejudice or a fundamental
miscarriage of justice sufficient
Page 25
to overcome the procedural default of claims D(1), D(2), D(3), F,
H, I, J, K, L, M, N, 0 and P. Accordingly, the Court is precluded from
considering the merits of these claims.

C. Petitioner's Remaining Claims

The Court has considered the merits of Petitioner's remaining claims.
Pursuant to 28 U.S.C. § 2254, federal courts may grant habeas corpus
relief to prisoners "in custody pursuant to the judgment of a State court
only on the ground that he is in custody in violation of the Constitution
or laws or treaties of the United States." 28 U.S.C.A. § 2254(a).
Since it was filed after April 24, 1996, the Petition is governed by the
Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), P.L.
104-132, 110 Stat. 1214. Lindh v. Murphy, 521 U.S. 320, 326-27 (1997).
Section 2254(d)(1), as amended by AEDPA, provides:

An application for a writ of habeas corpus on
behalf of a person in custody pursuant to the
judgment of a State court shall not be granted
with respect to any claim that was adjudicated on
the merits in State court proceedings unless the
adjudication of the claim 

(1) resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme
Court of the United States; or

(2) resulted in a decision that was based on an
unreasonable determination of the facts in light of
the evidence presented in the State court proceeding.

28 U.S.C.A. § 2254(d)(1).
Page 26

Under the AEDPA, a state court's legal determinations may only be
tested against "clearly established Federal law, as determined by the
Supreme Court of the United States." 28 U.S.C.A. § 2254(d)(1). This
phrase refers to the "holdings, as opposed to the dicta" of the United
States Supreme Court's decisions as of the time of the relevant state
court decision. Williams v. Taylor, 529 U.S. 362, 412 (2000). Courts look
to principles outlined in Teague v. Lane, 489 U.S. 288 (1989), to
determine whether a rule of law is clearly established for habeas
purposes. Williams, 529 U.S. at 379-80, 412. "[W]hatever would qualify as
an old rule under [the Court's] Teague jurisprudence will constitute
clearly established Federal law," except that the source of that clearly
established law is restricted to the United States Supreme Court. Id. at
412.

To apply the AEDPA standards to pure questions of law or mixed
questions of law and fact, federal habeas courts initially must determine
whether the state court decision regarding each claim was contrary to
clearly established Supreme Court precedent. Werts v. Vaughn, 228 F.3d 178,
197 (3d Cir. 2000). A state court decision may be contrary to clearly
established federal law as determined by the United States Supreme Court
in two ways. Williams, 529 U.S. at 405. First, a state court decision is
contrary to Supreme Court precedent where the court applies a rule that
contradicts the governing law set forth in United States Supreme Court
cases. Id. Alternatively, a state court decision is contrary to Supreme
Court
Page 27
precedent where the state court confronts a case with facts that are
materially indistinguishable from a relevant united states supreme court
precedent and arrives at an opposite result. Id. at 406. If relevant
United States Supreme Court precedent requires an outcome contrary to
that reached by the state court, then the court may grant habeas relief
at this juncture. Matteo v. Superintendent S.C.I. Albion, 171 F.3d 877,
890 (3d Cir. 1999).

If the state court decision is not contrary to precedent, the court
must evaluate whether the state court decision was based on an
unreasonable application of Supreme Court precedent. Id. A state court
decision can involve an "unreasonable application" of Supreme Court
precedent if the state court identifies the correct governing legal rule
but unreasonably applies it to the facts of the particular state
prisoner's case. Williams, 529 U.S. at 407. A state court determination
also may be set aside under this standard if the court unreasonably
refuses to extend the governing legal principle to a context in which the
principle should control or unreasonably extends the principle to a new
context where it should not apply. Ramdass v. Angelone, 530 U.S. 156, 166
(2000); Williams, 529 U.S. at 407.

To grant a habeas corpus writ under the unreasonable application
prong, the federal court must determine that the state court's application
of clearly established federal law was objectively unreasonable.
Williams, 529 U.S. at 409; Werts, 228
Page 28
F.3d at 197. A federal court cannot grant habeas corpus simply by
concluding in its independent judgment that the state court applied
clearly established federal law erroneously or incorrectly; mere
disagreement with a state court's conclusions is insufficient to justify
relief. Williams, 529 U.S. at 411; Matteo, 171 F.3d at 891. In
determining whether the state court's application of the Supreme Court
precedent is objectively unreasonable, habeas courts may consider the
decisions of inferior federal courts. Matteo, 171 F.3d at 890.

Section 2254 further mandates heightened deference to state court
factual determinations by imposing a presumption of correctness. 28
U.S.C.A. § 2254(e)(1). The presumption of correctness is rebuttable
only through clear and convincing evidence. Id. Clear and convincing
evidence is evidence that is "so clear, direct, weighty and convincing as
to enable the jury to come to a clear conviction, without hesitancy, of
the truth of the precise facts in issue." United States Fire Ins. Co. v.
Royal Ins.Co., 759 F.2d 306, 309 (3d Cir. 1985).

The district court may only grant relief on a habeas claim involving
state court factual findings where the state court's decision "was based
on an unreasonable determination of the facts in light of the evidence
presented in the State court proceeding." 28 U.S.C.A. § 2254(d)(2);
see Weaver v. Bowersox, 241 F.3d 1024, 1030 (8th Cir. 2001); Watson v.
Artuz, No. 99Civ.1364 (SAS), 1999 WL
Page 29
1075973, at *3 (S.D. N.Y. Nov. 30, 1999) (listing cases). The district
court must conclude that the state court's determination of the facts was
objectively unreasonable in light of the evidence available to the state
court. Weaver, 241 F.3d at 1030 (citing Williams, 529 U.S. at 409);
Torres v. Prunty, 223 F.3d 1103, 1107-8 (9th Cir. 2000); see also
Watson, 1999 WL 1075973, at *3. Mere disagreement with the state court's
determination, or even erroneous factfinding, is insufficient to grant
relief if the court acted reasonably. Weaver, 241 F.3d at 1030.

1. Bias of suppression court judge

Although alleged separately, claims A, B, and C in both Petitioner's
PCRA and habeas petitions set forth the single issue of whether the
rulings made by the suppression court judge on Petitioner's pretrial
motions were rendered unconstitutional by the judge's admission that he
could not impartially preside over Petitioner's trial. At the June 9,
1993 suppression hearing, Judge Arnold New of the Philadelphia Court of
Common Pleas heard evidence and argument on Petitioner's motion to
suppress inculpatory statements that he made to the police on the night
of his arrest. During the course of the hearing, it was brought to Judge
New's attention that Petitioner and his co-defendant had been recently
convicted of homicide in a related tria. Before breaking for a lunch
recess, Judge New denied Petitioner's suppression motion. (6/9/93 N.T. at
78). He further advised that "based upon what I
Page 30
heard so far, there is no way that I can give [co-defendant] and Mr.
Wheeler a fair trial. They have been interrelated to two homicides to
such a degree on the motions to supression [sic]. And I notice the
convictions by the juries. There is no way in my mind that I feel that I
can give them a fair trial." (Id. at 80). Judge New further remarked to
Petitioner and his co-defendant that "[t]here is a presumption in my mind
that you are guilty based upon the elements I have heard." (Id. at 82).
Upon returning from the luncheon recess, Judge New heard evidence and
argument on Petitioner's pro se motion to dismiss under Pennsylvania Rule
of Criminal Procedure 1100 ("Rule 1100"),*fn13 Pennsylvania's speedy
trial provision. This motion was also denied by Judge New. Following the
suppression hearing, Petitioner's case was reassigned to Judge Arthur S.
Kafrissen for trial.

In addressing Petitioner's claims A, B, and C on collateral review,*fn14
the Pennsylvania Superior Court characterized the issue
Page 31
as whether "the trial judge should have recused himself because he was
prejudiced against [Petitioner]." Commonwealth v. Wheeler, No. 621 EDA
1999, at 2. The court concluded that Petitioner's claim was meritless, as
"[i]n fact, the [suppression court judge] announced, following a
suppression hearing, that he could not act as an impartial judge in a
waiver trial, because he knew too much about a related homicide trial
involving [Petitioner] and a co-defendant, both of whom had been
convicted by juries." Id. at 3. However, Judge New's decision to recuse
himself from the trial does not resolve the question of whether his prior
rulings on Petitioner's motions were decided in a neutral and detached
manner. Accordingly, the Court makes a de novo determination of this
issue. See Appel v. Horn, 250 F.3d 203, 210 (3d Cir. 2001)("It follows
that when, although properly preserved by the defendant, the state court
has not reached the merits of a claim thereafter presented to a federal
habeas court, the deferential standards provided by AEDPA. do not apply
. . . [and] the federal habeas court must conduct a de novo review over
pure legal questions and mixed questions of law and fact. . . .").
However, the factual determinations of the state court "are still
presumed to be correct, rebuttable only upon a showing of clear and
convincing
Page 32
evidence." Id.

There is a due process right to have "a neutral and detached judge"
preside over judicial proceedings. Ward v. Village of Monroeville,
409 U.S. 57, 61-62 (1972); see Johnston v. Love, 940 F. Supp. 738, 774
(E.D. Pa. 1996)("Although not specifically framed as such by petitioner,
petitioner's claim that the trial judge was biased raises the issue of due
process"). Federal habeas review of the alleged bias of a state court
judge is confined to the narrow question of whether the petitioner's
right to due process has been violated. Cf. United States ex. rel. Perry
v. Cuyler, 584 U.S. 644, 645 (3d Cir. 1978) ("[W]e cannot [on § 2254]
exercise the far broader supervisory powers that this court has over the
federal district courts within our circuit."). A state judge's conduct
must be "significantly adverse to defendant before it violate[s] the
constitutional requirement of due process and warrant[s] federal
intervention." Garcia v. Warden, Dannemora Correctional Facility,
795 F.2d 5, 8 (2d Cir. 1986). In general, the standard for evaluating
whether a habeas petition alleges judicial bias amounting to a denial of
due process is whether the state judge was actually biased against the
petitioner. See, e.g., Margoles v. Johns, 660 F.2d 291, 296 (7th Cir.
1981) (holding that "[a] litigant is denied due process if he is in fact
treated unfairly" by the judge)(emphasis added). The mere appearance or
likelihood of bias will only support a due process violation where "the
judge
Page 33
[is] unable to hold the balance between vindicating the interests of the
court and the interests of the accused." Taylor v. Hayes, 418 U.S. 488,
501 (1974); see United States v. Wilenskv, 757 F.2d 594, 598 (3d Cir.
1985)(stating that proper inquiry is whether the judge's conduct
"pervaded the overall fairness of the proceeding").

During the suppression hearing, Judge New conceded only that he could
not impartially preside over Petitioner's waiver trial. By contrast, he
never expressed any doubt that he could act in a neutral and detached
fashion in deciding the motions pending before him in the suppression
hearing. Judge New's admission that he could not impartially preside over
Petitioner's trial was based on his preconceived notions of Petitioner's
guiltiness of the charged offenses. Although this admission undoubtedly
impaired Judge New's ability to act as an impartial fact-finder at
trial, it does not follow that Judge New was unable to resolve
Petitioner's pretrial motions, the legal outcome of which did not turn on
a determination of guilt or innocence, in a neutral and detached manner.
Thus, there is no evidence that Judge New's resolution of the pretrial
motions was infected by actual bias against Petitioner.

Viewed in isolation, Judge New's remarks may well show an the
appearance of bias that calls into question his ability to have
impartially decided the pretrial motions. When properly considered in the
larger context of the suppression hearing, however, the remarks were not
so pervasive as to convince this Court that Judge
Page 34
New was unable to hold the balance between vindicating the interests of
the court and the interests of Petitioner. As Petitioner has failed to
show that the Judge New's remarks rose to the level of a due process
violation, habeas relief must be denied with respect to claims A, B, and
C of the Petition.

2. Ineffective assistance of counsel

In Strickland v. Washington, 466 U.S. 668 (1984), the United States
Supreme Court held that criminal defendants have a Sixth Amendment right
to "reasonably effective" legal assistance, id. at 687, and set forth a
two-prong test for determining ineffective assistance of counsel. A
defendant first must show that counsel's performance was so deficient
that it fell below an objective standard of reasonableness under
prevailing professional norms. Strickland, 466 U.S. at 688. "This requires
showing that counsel made errors so serious that counsel was not
functioning as the `counsel' guaranteed by the Sixth Amendment." Id. at
687. "In evaluating counsel's performance, [the Court is] `highly
deferential' and `indulge[s] a strong presumption' that, under the
circumstances, counsel's challenged actions `might be considered sound
. . . strategy,'" Buehl v. Vaughn, 166 F.3d 163, 169 (3d Cir. 1999)(quoting
Strickland, 466 U.S. at 689). "Because counsel is afforded a wide range
within which to make decisions without fear of judicial second-guessing,
[] it is `only the rare claim of ineffectiveness of counsel that should
succeed under the properly
Page 35
deferential standard to be applied in scrutinizing counsel's
performance.'" Id. (citing United States v. Gray, 878 F.2d 702, 711 (3d
Cir. 1989)).

If a defendant shows that counsel's performance was deficient, he then
must show that the deficient performance prejudiced the defense.
Strickland, 466 U.S. at 687. "This requires showing that counsel's errors
were so serious as to deprive the defendant of a fair trial, a trial
whose results is reliable." Id. Defendant must show that "there is a
reasonable probability that, but for counsel's unprofessional errors, the
result of the proceeding would have been different. A reasonable
probability is a probability sufficient to undermine confidence in the
outcome." Id. at 694.

Petitioner makes three claims of ineffective assistance of counsel. In
claim D(3) of his Petition, Petitioner asserts that trial counsel was
ineffective for failing to communicate with him in preparing for
trial.*fn15 Although Petitioner properly preserved claim D(3) for
collateral review in state court, the PCRA courts did not address this
claim on the merits.*fn16 Accordingly, the Court
Page 36
has made a de novo determination on the merits of claim D(3). Appel, 250
F.3d at 210.

In his brief to the Pennsylvania Superior Court on PCRA review,
Petitioner asserted that " [a]t no point during the eighteen (18) months
and eight (8) or nine (9) days [prior to trial] did counsel ask or even
attempt to ask defendant anything about this crime." (PCRA Brief, at 13.)
The brief submitted in support of his habeas petition alleges, in an even
more conclusory fashion, that "[c]ounsel failed to communicate with the
Petitioner." (Habeas Brief, Claim D(3).) Without any explanation of how
the outcome of Petitioner's trial would have been different if counsel
had communicated with him, however, Petitioner cannot establish prejudice
sufficient to support an ineffectiveness claim. See, e.g., Biggins v.
Carroll, CIV.A. No. 99-188, 2002 WL 31094810, at *7 (D. Del.
2002)(rejecting ineffectiveness claim based on counsel's lack of
communication where there was no showing of prejudice). Accordingly,
habeas relief must be denied with respect to claim D(3) of the Petition.

Petitioner also makes a claim of ineffectiveness of trial counsel in
claim D(4), relating to an allegedly improper "deal" between the
prosecution and Tony Sheppard, a witness called by the prosecution during
Petitioner's trial. Sheppard, who had participated in the robbery for
which Petitioner was on trial,
Page 37
testified under oath that he had pleaded guilty to charges stemming
from the incident and agreed to testify on behalf of the prosecution in
exchange for a sentence of five years of probation. Petitioner maintains
that trial counsel was ineffective for failing to challenge the propriety
of this "deal" between the Commonwealth and Sheppard. On collateral
review, the Pennsylvania Superior Court rejected Petitioner's claim,
opining that "[g]iven Shepard's [sic] disclosure of his situation in
court, [Petitioner] has failed to show that he was prejudiced thereby."
Commonwealth v. Wheeler, No. 621 EDA 1999, at 4.

This ruling by the Pennsylvania Superior Court is neither contrary to,
nor an unreasonable application of, federal law. The disclosure in open
court of the agreement between the prosecution and Sheppard actually
shielded Petitioner from potential prejudice, as it provided the trial
judge with evidence critical to assessing the witness's credibility.
While the failure to make a sufficient showing of prejudice is, in and of
itself, fatal to Petitioner's ineffectiveness claim, the Court further
observes that trial counsel's performance in these circumstances was
entirely reasonable. Contrary to Petitioner's assertions, trial counsel
strenuously challenged the alleged "deal" between the prosecution and
Sheppard, even unsuccessfully moving for a mistrial after Sheppard
testified that he "agreed to cooperate on other trials if needed."
(See 6/10/03 N.T. at 108 ("Objected to, Judge. I don't
Page 38
know what that means, and I'm going to have to move for a mistrial.")).
Accordingly, habeas relief must be denied with respect to this aspect of
claim D(4) of the Petition.

Petitioner also asserts, in claim D(4), that trial counsel was
ineffective for failing to challenge an allegedly improper "deal" between
Sheppard and Judge Cohen, the trial judge before whom Sheppard had pled
guilty. Specifically, Petitioner maintains that Sheppard testified on the
record that the Judge Cohen advised him that he would go to jail if he
did not testify against Petitioner. Because the state courts did not
address this particular aspect of Petitioner's properly preserved claim,
this Court has made a de novo determination of this aspect of claim D(4).
Appel, 250 F.3d at 210.

Under de novo review, the Court finds that trial counsel's conduct did
not violate Petitioner's Sixth Amendment right to effective assistance of
counsel. Contrary to Petitioner's assertions, trial counsel took pains to
establish the impropriety of any "deal" between Judge Cohen and Sheppard,
as evidenced by the following exchange on cross-examination of Sheppard:

Q.: How many times have you talked to the District
Attorney's Office about this case?

A.: Never.

Q.: Never?

A.: Never.

Q.: You talked to [the District Attorney] about
Page 39
it yesterday for the first time?

A.: Yeah. I thought you said the District Attorney's
Office.

Q.: And did she tell you or you tell her that you had
to testify and help the Commonwealth to convict these
two men so that you could satisfy the condition of
your probation?

A.: I'm sure that she basically knew.

Q.: She made you know that you had to come across
and help convict them so that you can maintain
your probation, right?

A.: Yes.

(6/10/93 N.T. at 114.) In light of the efforts by trial counsel to
attack Sheppard's credibility, the Court finds that Petitioner has failed
to overcome the strong presumption that counsel's performance was
reasonably effective under the Sixth Amendment with respect to claim D(4)
of the Petition. Accordingly, habeas relief must be denied with respect
to this aspect of claim D(4) of the Petition.

In claim D(5) of his Petition, Petitioner asserts that trial counsel
was ineffective for failing to provide Petitioner with copies of
discovery materials so that he could assist counsel in preparing for
trial. Although Petitioner properly preserved claim D(5) for collateral
review in state court, the PCRA courts did not address this claim on the
merits. Accordingly, this Court will exercise de novo review of this
claim. Appel, 250 F.3d at 210.

Petitioner alleges that he filed with the trial court a
Page 40
notarized request for a copy of discovery materials on March 29, 1992.
The court granted the request, and the District Attorney sent copies of
the relevant documents and materials to Petitioner's trial counsel.
Petitioner alleges that he then made several unsuccessful requests to his
trial counsel for copies of the discovery materials. Without access to
the discovery materials, Petitioner claims that he was unable to
determine which witnesses he wanted to trial counsel to call at trial.
However, "[t]he decisions of which witnesses to call to testify are
strategic and therefore left to counsel." United States v. Pungitore,
965 F. Supp. 666, 674 (E.D. Pa. 1997). Thus, even if Petitioner would
have received a copy of the requested discovery materials, trial counsel
would not have been obligated to heed his suggestions on which witnesses
to call at trial. Petitioner has failed to show a reasonable probability
that, but for trial counsel's failure to provide him with copies of the
discovery materials, the outcome of his trial would have been different.
Accordingly, habeas relief must be denied with respect to claim D(5) of
the Petition. See Carillo v. United States, 995 F. Supp. 587, 591 (D.
V.I. 1998)(rejecting ineffectiveness claim based on counsel's failure to
share discovery documents with petitioner).

2. Trial court error in denying speedy trial motion

In claim E of his Petition, Petitioner argues that the suppression
court's rejection of his Rule 1100 motion violated his
Page 41
constitutional right to a speedy trial.*fn17 Although Petitioner
included this claim in his PCRA petition, the state courts did not
address the claim on collateral review.*fn18 Accordingly, this Court has
made a de novo determination on the merits of the claim. Appel, 250 F.3d
at 210.

On federal habeas review, the proper inquiry for the court is whether
the petitioner's federal constitutional right to a speedy trial has been
violated, not whether the trial court committed error under the state
speedy trial provisions. See Wells v. Petsock, 941 F.2d 253, 256 (3d Cir.
1991)("Our review of a federal habeas petition is limited to remedy
deprivations of a petitioner's federal constitutional rights. We can take
no cognizance of a non-constitutional harm to the defendant flowing from
a state's violation of its own procedural rule, even if that rule is
intended as a guide to implement a federal constitutional guarantee.").
The
Page 42
Speedy Trial Clause of the Sixth Amendment provides that "[i]n all
criminal prosecutions, the accused shall enjoy the right to a speedy and
public trial. . . ." In Barker v. Wingo, 407 U.S. 514, 532 (1972), the
United States Supreme Court adopted a balancing test to determine whether
a trial delay infringes the Sixth Amendment right to a speedy trial. The
Court identified four factors be to considered in the speedy trial
inquiry: the length of the delay, the validity of the reasons for the
delay, whether the defendant affirmatively asserted his right, and
whether the defendant was prejudiced by the delay. Id. at 530-32.

Turning first to the length of delay factor, the United States Supreme
Court has observed that "[s]imply to trigger a speedy trial analysis, an
accused must allege that the interval between accusation and trial has
crossed the threshold dividing ordinary from `presumptively prejudicial'
delay, since, by definition, he cannot complain that the government has
denied him a `speedy' trial if it has, in fact, prosecuted his case with
customary promptness." Doggett v. United States, 505 U.S. 647, 652
(1992). "Presumptive prejudice marks the point at which courts deem the
delay unreasonable enough to trigger a Barker enquiry." Id. The delay is
measured from the date of formal accusation, i.e., the earliest date of
arrest, until the commencement of trial. Hakeem v. Beyer, 990 F.2d 750,
760 (3d Cir. 1993). The police arrested Petitioner on November 27, 1991,
and the trial commenced on June 10, 1993, a
Page 43
delay of eighteen and one-half months. A delay of eighteen and one-half
months is presumptively prejudicial, requiring inquiry into the remaining
Barker factors. See id. ("We have held that a `delay of fourteen months
is . . . not dispositive in and of itself, but is sufficiently lengthy to
warrant an inquiry into the other facts.'")(quoting United States ex.
rel. Stukes v. Shovlin, 464 F.2d 1211, 1214 (3d Cir. 1972)).

Under the second Barker factor, the reason for the delay, "deliberate
attempt[s] to delay the trial in order to hamper the defense should be
weighted heavily against the government." Barker, 407 U.S. at 531.
Neutral reasons, such as negligence, will be weighed against the
prosecution, "but less heavily absent `any showing of bad faith or
dilatory purpose by the prosecution.'" Id. at 766 (quoting Government of
Virgin Islands v. Pemberton, 813 F.2d 626, 628 (3d Cir. 1987)).
Conversely, "[w]hen the reason for the delay originates with the
defendant or his counsel, such delay will not be considered for the
purposes of determining whether the defendant's right to speedy trial has
been infringed." Wells, 941 F.2d at 258. After holding a hearing on
Petitioner's speedy trial motion, during which Petitioner testified on
the issue, Judge New concluded: "I am accepting it based on the Quarter
Sessions file that the continuance[s] reduced 237 days in which the
reason for the [delay] is because [defense counsel or defendant] were
unavailable, on trial elsewhere but nonetheless unavailable under
Page 44
the law." (6/9/93 N.T. at 109.) This factual finding is entitled to a
presumption of correctness, as it is fairly supported by the record of the
hearing. See Hakeem v. Beyer, 990 F.2d 750, 767 (3d Cir. 1993) ("Findings
on the cause of delay are entitled to a . . . presumption of correctness
if petitioner had a fair opportunity to present his version of the events
and the state's findings on the issue are fairly supported by the
record."). Petitioner has offered no rebuttal evidence that is "so
clear, direct, weighty and convincing as to enable the [fact-finder] to
come to a clear conviction, without hesitancy, of the truth of the
precise facts in issue." United States Fire Ins. Co. v. Royal Ins. Co.,
759 F.2d 306, 309 (3d Cir. 1985).

Moreover, not entirely reflected in Judge New's calculation is an
additional amount of time during which Petitioner was not ready to
proceed to trial. Specifically, at the June 9, 1993 hearing the prosecutor
testified that he wanted to try the robbery case against Petitioner
before two separate homicide cases that were also pending against
Petitioner "so that [the robbery conviction] would be [an] aggravating
factor[] in the homicide[] [cases]." (6/9/93 N.T. at 91.) In May 2002,
the prosecutor advised Petitioner's counsel of his desire to try the
robbery case first, at which point Petitioner's counsel "expressed . . .
[his] wish that the robberies not be tried first," (Id. at 97), as he
"would be unable to try the [robbery] case any time soon." (Id. at 94.)
The second homicide
Page 45
case against Petitioner did not conclude until February 2003, and
Petitioner's counsel was thereafter unavailable for the majority of the
time leading up to the June 10, 2003 trial on the robbery charges.
Moreover, there is no evidence that the prosecution made any deliberate
attempts to delay the trial in order to hamper the defense or otherwise
acted with an improper motive. To the contrary, as discussed above, the
prosecutor "spent a considerable amount of time" unsuccessfully imploring
Petitioner's counsel to proceed to trial on the robbery case sooner
rather than later. (Id. at 97.) Accordingly, the second Barker factor
weighs against the finding of a violation of Petitioner's Sixth Amendment
right to a speedy trial.

The third Barker factor requires an inquiry into whether the Petitioner
affirmatively asserted his speedy trial right in a timely and proper
manner. Hakeem, 990 F.2d at 764. A habeas petitioner must demonstrate
that he made a "reasonable assertion of [the] speedy trial right." Id.
(quoting Pemberton, 813 F.2d at 629)). Petitioner did make several
assertions of his speedy trial right prior to trial. On January 28,
1993, Petitioner filed a pro se motion with the state trial court,
claiming that his case should be dismissed because of unconstitutional
delay by the prosecution and Petitioner's counsel in bringing the case to
trial. On March 23, 1993, Petitioner filed another pro se motion with the
state trial court, again asserting that his speedy trial rights were
Page 46
being violated. According to the state court records, however,
Petitioner's counsel was on trial elsewhere when Petitioner filed each of
his pro se motions. As Petitioner was unready for trial on the dates on
which he submitted his pro se speedy trial motions, these assertions of
his Sixth Amendment right carry only minimum weight. See id. ("Repeated
assertions of the [speedy trial] right do not . . . balance this factor
in favor of a petitioner when other actions indicate that he is unwilling
or unready to go to trial."). Although Petitioner was ready to proceed to
trial when asserted his speedy trial right at the June 9, 1993 pretrial
hearing before Judge New, courts have given minimal weight to speedy
trial assertions occurring shortly before trial. Id. (citing United
States v. Kalady, 941 F.2d 1090, 1095 (10th Cir. 1991); Martin v. Rose,
744 F.2d 1245, 1252 (6th Cir. 1984)). Accordingly, while Petitioner has
asserted his speedy trial right on several occasions, the circumstances
surrounding those assertions detract significantly from the weight
accorded to Petitioner's claim under the third Barker factor.

Under the fourth Barker factor, the Court must examine the prejudice to
the Petitioner from the delay. The Third Circuit has observed that
prejudice is the "most critical Barker factor." Wells, 941 F.2d at 258.
Three types of prejudice can result from a pretrial delay: oppressive
pretrial incarceration, the accused's anxiety and concern over the outcome
of the defense, and impairment
Page 47
of the defense. Id. Petitioner asserts that his eighteen and one-half
months of pretrial incarceration was oppressive and caused him to
experience severe anxiety.

To establish prejudice based on oppressive pretrial incarceration, a
petitioner must identify "sub-standard conditions or other oppressive
factors beyond those that necessarily attend imprisonment." Hakeem, 990
F.2d at 761. Petitioner contends that his pretrial incarceration was
oppressive because of physical altercations he had with other inmates
after refusing to have sexual intercourse with them. However, as at least
one court has observed, "[g]iven that prisons cannot realistically
monitor every cell at every moment, cell fights are an inevitable fact of
prison life. . . ." Madrid v. Gomez, 889 F. Supp. 1146, 1269 (N.D. Cal.
1995); see also Ramos v. Lamm, 639 F.2d 559, 572 (10th Cir.
1980)(recognizing that a "prison setting is, at best, tense . . .
sometimes explosive, and always potentially dangerous")(citation
omitted). In the absence of evidence that the physical altercations that
Petitioner had with other inmates occurred at a level and frequency
sufficient to create a pervasive risk of harm, the Court cannot conclude
that Petitioner was subjected to oppressive pretrial incarceration.
Moreover, while time alone may, in some cases, rise to the level of
oppressive pretrial incarceration, Doggett v. United States, 505 U.S. 647,
655 (1992), credit for time served "mitigate[s] the potential oppressive
Page 48
effects of . . . incarceration." Hakeem, 990 F.2d at 762 (quoting Gray
v. King, 724 F.2d 1199, 1204 (5th Cir. 1984)). The state court record in
this case reveals that Petitioner did receive credit for all the pretrial
time he served.

Petitioner also attempts to establish prejudice based on the anxiety he
allegedly experienced during his eighteen and one-half months of pretrial
incarceration. To establish prejudice based on anxiety and concern over
the outcome of the litigation, a petitioner must show that his anxiety
extended beyond that which "is inevitable in a criminal case." Hakeem,
990 F.2d at 762 (quoting United States v. Dreyer, 533 F.2d 112, 116 (3d
Cir. 1976)). Vague allegations of anxiety are insufficient to establish
prejudice. Id. Instead, a petitioner must produce evidence of "psychic
injury." Id. (citing Dreyer, 533 F.2d at 115-16). In his Petition,
Petitioner alleges that he was "heavily sedated on psychotropic
medication" during his pretrial incarceration in order to cope with
anxiety. (Habeas Pet., Claim E.) During the June 9, 1993 hearing,
Petitioner testified that he experienced a "substantial [amount] of
anxiety and depression being away from my wife and five children, waiting
to be brought to trial on these allege[d] charges" and was placed on
"psychiatric medication which I am still on to this very day to deal with
the anxiety." (6/9/93 N.T. at 106-107.) While Petitioner's testimony
advances his prejudice claim, his showing pales in comparison to the
evidence
Page 49
produced by successful defendants in other cases. See, e.g., Dreyer, 533
F.2d at 116 (defendant submitted a psychiatrist report concluding that
"the events of the last two years have created such pathological stress
in [the defendant] over such a long time that she now has a deeply
disturbed personality pattern"). In any event, whatever prejudice
suffered by Petitioner under the fourth Barker factor is outweighed by
the remaining Barker factors. As the eighteen and one-half month delay
between Petitioner's arrest and trial did not violate Petitioner's Sixth
Amendment right to a speedy trial, habeas relief must be denied with
respect to claim E of the Petition.

3. Trial verdict was against the weight of the evidence

In claim G of his Petition, Petitioner argues that the trial court
verdict was against the weight of the evidence. Although the Pennsylvania
Superior Court concluded that Petitioner waived this claim by not
including it in his PCRA petition, the Court finds that Petitioner did,
in fact, include a claim in his PCRA petition alleging that the trial
verdict was against the weight of the evidence. Nevertheless, a claim
asserting that the trial court decision was against the weight of the
evidence is not a cognizable basis for habeas relief. Harmon v.
McCullough. No. 99-3199, 2000 WL 804431, at *3 (E.D. Pa. June 22,
2000)(citing Tibbs v. Florida, 457 U.S. 31, 42-45 (1982)). Accordingly,
habeas relief must be denied with respect to claim G of the Petition.
Page 50

IV. CONCLUSION Following a de novo review of the Petition and Report,
the Court overrules all of Petitioner's objections, adopts the Magistrate
Judge's Report to the extent that it is consistent with this Memorandum,
and denies the Petition. An appropriate Order follows.

ORDER

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